The Bradley Manning Hearing: What’s Likely to Arise

Wired magazine has a long-ish report on what to expect from the upcoming “Article 32“ pre-trial hearing for Bradley Manning, accused Wikileaker:

The Article 32 hearing, a cross between a grand jury hearing and preliminary hearing in civilian courts, will be the first time the prosecution and defense have an opportunity to present a skeleton case around the charges, allowing them both to call witnesses, cross-examine them and present arguments.

Such hearings typically last from a few hours to a day or two, but the military has indicated that Manning’s hearing could run five days or more, including throughout the weekend and the Jewish Hanukkah holiday, depending on the number of witnesses called and motions raised — giving the proceedings an odd and sudden sense of urgency considering the lengthy time Manning has been confined.

The hearing’s significance will rest largely on its strategic value to the prosecution and defense, who will each be looking for the other side to tip its hand and reveal glimpses of its action plan…

The Army side has it easier:

The evidentiary bar for getting to a court-martial is fairly low, says military justice expert Lisa Windsor, and the prosecution will want to limit the evidence it presents to the minimum needed to show reason to believe Manning committed the offenses, and nothing more. “That he had access, that he had the ability to do it, that he had the motive, and that he bragged about having committed the offense afterward” is all the prosecution will likely present at this point, she told Wired.com.

But not a total cakewalk:

At least one element might give the government trouble, Windsor warned, referring to charges that Manning aided the enemy. WikiLeaks, as a private entity and not a government entity or an agent of a government entity, “does not fit into the definition of the enemy under [the Uniform Code of Military Justice],” Windsor says.

What does Manning’s side have in their arsenal?

Defense attorney David E. Coombs has cautioned against making assumptions about his strategy based on court papers he’s made public so far. But a proposed witness list he published, and motions for evidence he filed, hint at some of the defenses he might bring up at the hearing, and suggest a more pragmatic approach than the pro-leaking position advocated by Manning supporters.

The latter, such as Pentagon Papers leaker Daniel Ellsberg, have largely defended Manning’s actions by arguing that he was a whistleblower of conscience, and that his alleged leaks were justified because they exposed government wrongdoing.

But court filings from Coombs have avoided that stance, seeming to argue instead that the data Manning allegedly leaked caused no substantial harm to U.S. national security, and that the military shares blame for the leaks since it failed to secure the data properly and didn’t revoke Manning’s access to classified networks despite warning signs about his emotional instability…

it appears the government is opposed to the defense calling military mental health experts who worked with Manning, as well as other witnesses who can testify to Manning’s deteriorating emotional health before and during the time the alleged leaks occurred. Those witnesses would be able to testify, the defense hopes, to the failure of the Army to address these issues at the time. The defense’s focus on witnesses who will testify to Manning’s mental health is likely an effort to mitigate any punishment Manning will face if convicted…

And what happens after these hearings, and who decides?

The hearing will be presided over by a senior officer, generally referred to as the investigating officer, who is presumed to be an impartial officer chosen by the convening authority — in this case the Military District of Washington, where the hearing will be held.

The investigating officer will listen to the evidence and arguments presented in court and make a recommendation to the convening authority – generally the commanding general of the district. That officer then decides if the case should proceed to a court-martial and, if so, whether any of the charges should be dropped or modified.

A decision would likely come within a couple of months following the hearing, according to Windsor.

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